Most documents on file with the Bronx County Clerks office can be found at their new Internet home. You can either register to go on-line or go on-line as a quest. If you have Adobe Reader, or Adobe Acrobat you can access and download the documents.

I have recently learned that the The New York State Bar Association has issued an opinion similar to a NYCLA opinion which I discussed recently. In Ethics Opinion 837, issued March 16, 2010, with the topic heading of Confronting false evidence and false testimony, the New York State Bar Association Committee On Professional Ethics was confronted with this scenario: A client gave sworn testimony at an arbitration proceeding concerning a document. The document was admitted into evidence based upon the testimony. The client also testified concerning the client’s actions in preparing the document and submitting the document to the client’s employer. In a later conversation between client and counsel, the client informed counsel that the document was forged. Counsel thereby came to know that the document and some of the client’s testimony concerning the document were false.

What to do? The Conclusion the committee came to under the new rules was that “Rule 3.3 [set forth below – LJS] requires an attorney to take reasonable remedial measures even if doing so would entail the disclosure to a tribunal of client confidential information otherwise protected by Rule 1.6. [set forth below – LJS] However, if reasonable remedial measures less harmful to the client than disclosure are available, then disclosure to the tribunal is not “necessary” to remedy the falsehood and the attorney must use measures short of disclosure”

They also gave guidance by approving the solution of informing “the tribunal that the specific item of evidence and the related testimony are being withdrawn, but … not expressly make any statement regarding the truth or falsity of the withdrawn items.” They then reminded us that “before acting unilaterally, [counsel] should bring the issue of false evidence to the client’s attention, and seek the client’s cooperation in taking remedial action.”

In the digest to the opinion it said that “Rule 3.3 of the New York Rules of Professional Conduct requires an attorney to disclose client confidential information to a tribunal if discloser is necessary to remedy false evidence or testimony. The exception in former DR 7-102(B)(1) exempting discloser of information protected as a client “confidence or secret” no longer exists.”

Thus I ask myself, does an attorney have an obligation to a client to advise them of this change in the rules? I do this because most if not all clients will assume that anything that is said to an attorney will be kept confidential. As many attorneys will err on the side of caution, I think that it would be best to let the client know that if I learn that you have lied at a deposition, trial, arbitration or in providing discovery and it is important (another word for material) I will have to let the Court/Arbitrator know about it one way or another and with or without your help. But if I can do so without specifically telling the Court/Arbitrator that you lied and what the truth is, I will try to do that. Any thoughts on this task will be appreciated.

RULE 3.3: Conduct Before a Tribunal

(a) A lawyer shall not knowingly:
(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;
(2) fail to disclose to the tribunal controlling legal authority known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or
(3) offer or use evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.
(b) A lawyer who represents a client before a tribunal and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reason- able remedial measures, including, if necessary, disclosure to the tribunal.
(c) The duties stated in paragraphs (a) and (b) apply even if compliance requires disclosure of in formation otherwise protected by Rule 1.6.
(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.
(e) In presenting a matter to a tribunal, a lawyer shall disclose, unless privileged or irrelevant, the identities of the clients the lawyer represents and of the persons who employed the lawyer.
(f) In appearing as a lawyer before a tribunal, a lawyer shall not:
(1) fail to comply with known local customs of courtesy or practice of the bar or a particular tribunal without giving to opposing counsel timely notice of the intent not to comply;
(2) engage in undignified or discourteous conduct;
(3) intentionally or habitually violate any established rule of procedure or of evidence; or
(4) engage in conduct intended to disrupt the tribunal.

RULE 1.6: Confidentiality of Information

(a) A lawyer shall not knowingly reveal confidential information, as defined in this Rule, or use such in- formation to the disadvantage of a client or for the advantage of the lawyer or a third person, unless:
(1) the client gives informed consent, as defined in Rule 1.0(j);
(2) the disclosure is impliedly authorized to advance the best interests of the client and is either reasonable under the circumstances or customary in the professional community; or
(3) the disclosure is permitted by paragraph (b).
“Confidential information” consists of information gained during or relating to the representation of a client, whatever its source, that is (a) protected by the attorney-client privilege, (b) likely to be embarrassing or detrimental to the client if disclosed, or (c) information that the client has requested be kept confidential. “Confidential information” does not ordinarily include (i) a lawyer’s legal knowledge or legal research or (ii) information that is generally known in the local community or in the trade, field or profession to which the information relates.
(b) A lawyer may reveal or use confidential information to the extent that the lawyer reasonably believes necessary:
(1) to prevent reasonably certain death or substantial bodily harm;
(2) to prevent the client from committing a crime;
(3) to withdraw a written or oral opinion or representation previously given by the lawyer and reasonably believed by the lawyer still to be re- lied upon by a third person, where the lawyer has discovered that the opinion or representation was based on materially inaccurate information or is being used to further a crime or fraud;
(4) to secure legal advice about compliance with these Rules or other law by the lawyer, another lawyer associated with the lawyer’s firm or the law firm;
(5) (i) to defend the lawyer or the lawyer’s employees and associates against an accusation of wrongful conduct; or (ii) to establish or collect a fee; or
(6) when permitted or required under these Rules or to comply with other law or court order.
(c) A lawyer shall exercise reasonable care to prevent the lawyer’s employees, associates, and others whose services are utilized by the lawyer from disclosing or using confidential information of a client, except that a lawyer may reveal the information permitted to be disclosed by paragraph (b) through an employee.

Access information 24/7 from your desktop by logging on to NOVELNY, the New York Online Virtual Electronic Library. A wide variety of resources are available free to New York State residents. There is access to the full text of hundreds of journals, newspapers, and other references. There are over 400 publications with “Law” in the title, such as the the Harvard Law Review, the Insurance Coverage Law Bulletin, and Medical Malpractice Law & Strategy. But most of these “Law” publications are Internet related. Note, however, not all resources are up to day, but it seems that most are. And they vary as to how far back they go in time.

If you have a public library card, New York driver license, or New York non-driver ID you can use NOVELNY. Access is also available to holders of a New York State Resident Borrower’s Card or a New York State Library Borrower’s Card.

Resources are available if you need assistance in using NOVELNY. There is a FAQ page, or you can call the Help Desk (available only Monday – Friday 9:00 am to 4:00 pm Toll-free (877) 277-0250, Capital District (518) 486-6012).

This link has been added to my list of links. And if you find it helpful, let me know.

On April 1, 2009, the Rules of Professional Conduct replaced the New York Code of Professional Responsibility. Last month the New York Committee on Professional Ethics issued it first ruling based upon the new rules and abandoned an opinion of 14 year. And while ethics opinion are not binding on the Courts, it is, I believe, rare that they are ignored.

But note, here the opinion presupposes that the lawyer has actual knowledge of the falsity of the testimony and that actual knowledge may be inferred circumstantially.
—————————————-
NYCLA COMMITTEE ON PROFESSIONAL ETHICS FORMAL OPINION No. 741

Date Issued: March 1, 2010

Based upon RPC 3.3,1.6 (set forth below.)

QUESTION: What are a lawyer’s duties and obligations when the lawyer learns after the fact that the client has lied about a material issue in a civil deposition?

DIGEST ANSWER: A lawyer who comes to know after the fact that a client has lied about a material in a deposition in a civil case must take reasonable remedial measures, starting by counseling the client to correct the testimony. If remonstration with the client is ineffective, then the lawyer must take additional remedial measures, including, if necessary, disclosure to the tribunal. If the lawyer discloses the client’s false statement to the tribunal, the lawyer must seek to minimize the disclosure of confidential information. This opinion supersedes NYCLA Ethics Opinion 712.
—————————————-
Ethics Opinion 712, issued in March 1996, provided the following digest answer to a similar question:

DIGEST ANSWER: Where A Client Advises Lawyer That Prior Deposition Testimony Was False, Lawyer May Continue In The Representation Provided That The Lawyer Does Not Knowingly Use The Perjured Testimony Or False Evidence.

The Question in 712 however was more expansive:

QUESTION: The inquirer’s client is a defendant in a civil litigation. After the client provided deposition testimony to the plaintiff, the client advised the lawyer that certain of the testimony was untrue. The facts that are the subject of the false deposition testimony are material to the case so that no objection as to relevance will be available. The deposition transcript, which remains in the lawyer’s possession, has not been signed by the client. The client has rejected the lawyer’s advice to correct the transcript or otherwise rectify the fraud. Discovery has been completed and the case is now on the trial calendar. The inquirer has asked what action he mayor must take to withdraw from the representation and/or to notify the trial judge or opposing counsel of the false deposition testimony of his client.

RULE 3.3: Conduct Before a Tribunal

(a) A lawyer shall not knowingly:
(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;
(2) fail to disclose to the tribunal controlling legal authority known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or
(3) offer or use evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.
(b) A lawyer who represents a client before a tribunal and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reason- able remedial measures, including, if necessary, disclosure to the tribunal.
(c) The duties stated in paragraphs (a) and (b) apply even if compliance requires disclosure of in formation otherwise protected by Rule 1.6.
(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.
(e) In presenting a matter to a tribunal, a lawyer shall disclose, unless privileged or irrelevant, the identities of the clients the lawyer represents and of the persons who employed the lawyer.
(f) In appearing as a lawyer before a tribunal, a lawyer shall not:
(1) fail to comply with known local customs of courtesy or practice of the bar or a particular tribunal without giving to opposing counsel timely notice of the intent not to comply;
(2) engage in undignified or discourteous conduct;
(3) intentionally or habitually violate any established rule of procedure or of evidence; or
(4) engage in conduct intended to disrupt the tribunal.

RULE 1.6: Confidentiality of Information

(a) A lawyer shall not knowingly reveal confidential information, as defined in this Rule, or use such in- formation to the disadvantage of a client or for the advantage of the lawyer or a third person, unless:
(1) the client gives informed consent, as defined in Rule 1.0(j);
(2) the disclosure is impliedly authorized to advance the best interests of the client and is either reasonable under the circumstances or customary in the professional community; or
(3) the disclosure is permitted by paragraph (b).
“Confidential information” consists of information gained during or relating to the representation of a client, whatever its source, that is (a) protected by the attorney-client privilege, (b) likely to be embarrassing or detrimental to the client if disclosed, or (c) information that the client has requested be kept confidential. “Confidential information” does not ordinarily include (i) a lawyer’s legal knowledge or legal research or (ii) information that is generally known in the local community or in the trade, field or profession to which the information relates.
(b) A lawyer may reveal or use confidential information to the extent that the lawyer reasonably believes necessary:
(1) to prevent reasonably certain death or substantial bodily harm;
(2) to prevent the client from committing a crime;
(3) to withdraw a written or oral opinion or representation previously given by the lawyer and reasonably believed by the lawyer still to be re- lied upon by a third person, where the lawyer has discovered that the opinion or representation was based on materially inaccurate information or is being used to further a crime or fraud;
(4) to secure legal advice about compliance with these Rules or other law by the lawyer, another lawyer associated with the lawyer’s firm or the law firm;
(5) (i) to defend the lawyer or the lawyer’s employees and associates against an accusation of wrongful conduct; or (ii) to establish or collect a fee; or
(6) when permitted or required under these Rules or to comply with other law or court order.
(c) A lawyer shall exercise reasonable care to prevent the lawyer’s employees, associates, and others whose services are utilized by the lawyer from disclosing or using confidential information of a client, except that a lawyer may reveal the information permitted to be disclosed by paragraph (b) through an employee.

In a unanimous memorandum decision, the Court of Appeals on April 1, 2010 reaffirmed the timing requirement for a request for a missing witness charge. In People v Carr the Court said “A party seeking a missing witness instruction has the burden of making the request ‘as soon as practicable’ (People v Gonzalez, 68 NY2d 424, 428 [1986]). Whether such a request is timely is a question to be decided by the trial court in its discretion, taking into account both when the requesting party knew or should have known that a basis for a missing witness charge existed, and any prejudice that may have been suffered by the other party as a result of the delay.

Here, defendant knew at the outset of the trial that the People did not intend to call three of the victim’s relatives who were present at the time of the alleged crime. Supreme Court did not abuse its discretion in holding that defendant’s request for a missing witness charge, made more than a week after the People provided their witness list, and after the People had rested their case in chief, came too late.” (emphasis added)

The reasoning behind the “soon as practicable” requirement was explained in People v Gonzalez, supra., where the request by defendant was made at the charge conference, after the People had rested. There the Court said “[t]he burden, in the first instance, is upon the party seeking the charge to promptly notify the court that there is an uncalled witness believed to be knowledgeable about a material issue pending in the case, that such witness can be expected to testify favorably to the opposing party and that such party has failed to call him to testify. In some instances, this information may be available prior to trial; at other times, it may not become apparent until there has been testimony of a witness at trial. In all events, the issue must be raised as soon as practicable so that the court can appropriately exercise its discretion and the parties can tailor their trial strategy to avoid ‘substantial possibilities of surprise.’” (emphasis added.)

The “parties” referred to is clearly in the first instance is the party against whom the charge is sought and the trial strategy is the decision to call or not call a witness. Therefore, don’t wait for the charge conference to request the charge for the first time, but as soon as you realize that you may be entitled to a missing witness charge (People v Gonzalez, supra, sets forth the standard) let your adversary and the Court know that you are requesting it. And it would appear that you are entitled to a ruling by the Court on your request at the time you make the request or shortly thereafter.

With the baseball season just around the corner (The New York Yankees take on the The Boston Red Sox at Fenway Park at 8:05 p.m. on April 4th) it is time to brush up on the rules of baseball, and the best place to start is a reading or rereading of The Common Law Origins of the Infield Fly Rule 123 Univ. Penn. Law Review 1474 (1975,) anonymously penned by William S. Stevens, who was then a law student at the University of Pennsylvania Law School. Unfortunately Mr. Stevens passed away at age 60, on December 8, 2008

The complete code of rules governing the playing of baseball games by professional teams of Major League Baseball and the leagues that are members of the National Association of Professional Baseball Leagues can be found here, starting with the “Foreword,” with the rest of the rules obtained by clicking on the menu to the left of the “Foreword” and under “Official Rules.”

While driving on a number of Interstates, in the past few days, so as to attend a Seder in Luray, VA (first night,) and East Northport, NY (second night,) I was reminded of a rule of law, when drivers chose to drive only a few feet behind me, while we traveled at various speed limits, the highest of which is in West Virginia, where it is 70 miles per hour. I learned of this rule early in my practice and I have always found its name intriguing.

The Assured Clear Distance Ahead Rule, which has apparently only been adopted in the First Department, provides that “[i]t is negligence as a matter of law to drive a motor vehicle at such a rate of speed that it cannot be stopped in time to avoid an obstruction discernible within the driver’s length of vision ahead of him. This rule is known generally as the ‘assured clear distance ahead’ rule * * * In application, the rule constantly changes as the motorist proceeds, and is measured at any moment by the distance between the motorist’s vehicle and the limit of his vision ahead, or by the distance between the vehicle and any intermediate discernible static or forward-moving object in the street or highway ahead constituting an obstruction in his path. Such rule requires a motorist in the exercise of due care at all times to see, or to know from having seen, that the road is clear or apparently clear and safe for travel, a sufficient distance ahead to make it apparently safe to advance at the speed employed.” (4A NY Jur, Automobiles and Other Vehicles, § 720; emphasis supplied.)” O’Farrell v. Inzeo, 74 A.D.2d 806 (1st Dept. 1980)

I suspect that the reason that it is not adopted in other departments is that it may be viewed as redundant in light of V&TL § 1129, which provides

“(a) The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway.”

I must conclude by noting that I like the language of the Assured Clear Distance Ahead Rule better than that of V&TL. § 1129. I think it shows the charm of the common law over statutory law.